HYDER ALI Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition has been filed challenging Annexure-A7 order whereby the Special Judge refused to implead the investigating officer, who conducted the investigation in this case and examined as PW12, as additional accused.

(2.) Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused Annexure-A7 order and the decision cited by the learned counsel for the petitioner in support of his contentions.

(3.) The learned counsel for the petitioner argued that going by the evidence given by PW1, the victim and PW2 her mother, both of them reached the police station on 18/8/2023 to give statement in relation to the occurrence. Similarly, PW12 the Investigating Officer during his cross examination also conceded that PWs 1 and 2 reached the police station at 9.30 p.m. on 18/8/2023. Accordingly, it is argued that when information regarding commission of a cognizable offence under the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act') was informed or reported to PW12, he has a statutory duty to record the statement and to register a crime, immediately on receipt of the information or report in tune with the mandate of Sec. 19 (2) of the POCSO Act. Failure to do so, would definitely attract the offence punishable under Sec. 21 (1) of the Act. He also submitted that in so far as the right of an accused or a co-accused to file an application under Sec. 319 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') is concerned, the law is well settled and he has placed a decision of this Court in Vasudevan Nair V. State of Kerala [ 2005 (1) KLJ 265] where this Court held that; "the view taken by the learned Magistrate that the accused had no locus standi to file such a petition (S.319) is not correct. A reading of the provisions of Sec. 319 clearly shows that such a petition can be filed not only by the defacto complainant, but also a witness or even the accused. The power under Sec. 319 is an extraordinary power which is conferred on the Court. That power shall be exercised only if compelling reasons exist for taking cognizance against the person against whom action has not been taken. If after taking evidence the learned Magistrate finds that any other person other than the three accused now arraigned as accused is also to be tried along with the accused, it is open to him to pass appropriate orders under Sec. 319 (1) of Code of Criminal Procedure."